Fair Work Act 2009

s.437 - Protected action

Proposed protected action ballot of employees of Kuiper Australia Pty Ltd - Application dismissed.

• [1] This is an Application by the Australian Workers' Union (AWU or Applicant) made under section 437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Kuiper Australia Pty Ltd (Kuiper or Employer). The AWU filed the initial Form 34 Application at 10:05pm AEST on Sunday 18 August 2024. The application was accompanied by a draft Order and a Form 34B Declaration in support of the application completed by Mr Ross Kumeroa, Offshore Alliance Organiser of the AWU.

• [2] At 1:26pm AEST On 19 August 2024, the Commission was advised by Hall & Wilcox Lawyers acting for the Respondent that the Employer objected to the Application. The email correspondence included the following:

We refer to Application for a Protected Action Ballot Order filed by the Australian Workers Union (AWU) on Sunday, 18 August 2024 (Application).

We are instructed that Kuiper objects to the Application on the following grounds:

1. The enterprise agreement proposed by the AWU (referred to in Part 2.1, paragraph 7 of Form F34B dated 18 August 2024) covers employees who are covered by the:

(a) Kuiper Australia Pty Ltd - Western Australia and Northern Territory Offshore Construction Project Greenfields Agreement 2020 - 2024, which has a nominal expiry date of 16 August 2024; and

(b) Kuiper Australia Pty Ltd Maintenance Work (Western Australia and Northern Territory) Agreement 2021-2025, which has a nominal expiry date of 2 July 2025.

By reason of s438(1) of the Fair Work Act 2009 (Cth) (FW Act), the Application cannot be made as it is more than 30 days before the nominal expiry date of the Kuiper Australia Pty Ltd Maintenance Work (Western Australia and Northern Territory) Agreement 2021-2025.

1. A protected action ballot order cannot be made under s443(1)(b) of the FW Act as the Commission cannot be satisfied in the circumstances that the AWU has been and is genuinely trying to reach agreement with Kuiper in relation to the enterprise agreement proposed by the AWU.

Kuiper wishes to be heard by the Commission in respect of the objections outlined above.

In the alternative, in the event that a Protected Action Ballot Order is to be made, Kuiper seeks that under s 443(5) of the FW Act that the Protected Action Ballot Order specify that the period of written notice referred to in s 414(2)(a) be 7 working days on the basis of there being exceptional circumstances justifying this period of written notice.

We note that Kuiper will seek permission to be represented at any hearing. Kuiper's counsel is located in Melbourne, and we therefore respectfully request that the matter be listed not before Wednesday, 21 August 2024.

• [3] Directions were issued for the filing of evidence and submissions. On 20 August 2024 the Respondent filed an Outline of Submissions and witness statements from Mr Craig Follett, Managing Director of the Respondent and Mr Sameer Shroff, an employee of Saipem Australia Pty Ltd (Saipem) employed in the role of Project Manager.

• [4] On the morning of 21 August 2024, the AWU filed an Outline of Submissions, a witness statement from Mr Kumeroa, an amended Form 34 Application, and an amended draft order.

• [5] The hearing was conducted by Video on Microsoft Teams and commenced at 2:30pm AEST on Wednesday 21 August 2024. The AWU was represented by Mr Leo Saunders of Counsel, the AMWU was represented by Solicitor Mr Cory Fogliani of Fogliani Lawyers and the Respondent was represented by Mr Michael Follett, Senior Counsel with Mr James MacLean of Counsel. Leave was granted for each of the participants in the hearing to be represented by a lawyer.

• [6] Mr Ross Kumeroa was not required for cross examination and his Form 34B Statutory Declaration was admitted into evidence,[1] as was his statement of 21 August 2024.[2]

• [7] Mr Sameer Shroff was also not required for cross examination and his statement[3] was also admitted into evidence. Mr Craig Follett's witness statement was admitted[4] and he provided oral evidence.

• [8] The determination of the AWU's request to amend its application was agreed to be held over pending the hearing of the evidence and submissions.

• [9] In answer to question 1.2 on the original application form, "What existing enterprise agreement(s) cover the employees who will be covered by the proposed enterprise agreement?" The application stated as follows: "Kuiper Australia Pty Ltd - Western Australia and Northern Territory Offshore Construction Projects Greenfields Agreement 2020 - 2024 Nominal Expiry Date: 16 August 2024."

• [10] In answer to question 2.1 on the original application "Which employees are to be balloted?" The application stated as follows: "In accordance with s.437(5) of the Act, the employees to be balloted are those employees of Kuiper Australia Pty Ltd who will be covered by the proposed enterprise agreement and are members of, or are represented by, the bargaining representative who is the Applicant for this protected action ballot order."

• [11] In the Form 34B declaration of Mr Kumeroa, in answer to question 1.1 Is there an existing enterprise agreement(s) which covers the employees? Mr Kumeroa said as follows: "Kuiper Australia Pty Ltd - Western Australia and Northern Territory Offshore Construction Projects Greenfields Agreement 2020 - 2024." In answer to question 1.5 "Has bargaining for a proposed enterprise agreement commenced?" Mr Kumeroa answered yes. In answer to question 1.6 "What is the date of notification time for the proposed enterprise agreement?" Mr Kumeroa said as follows: "17 August 2024 Notice provided by AWU pursuant to s.173(2A)".

• [12] In answer to question 2.1 "Describe how you have been, and are, genuinely trying to reach agreement" Mr Kumeroa said as follows:

"1. The Australian Workers Union (AWU) has been trying to reach agreement with Kuiper Australia Pty Ltd (Respondent) for an agreement to replace the Kuiper Australia Pty Ltd - Western Australia and Northern Territory Offshore Construction Projects Greenfields Agreement 2020 - 2024 (2020 Agreement). The proposed agreement will cover the Respondent's employees in the classifications contained in the proposed agreement and who are members or are eligible to be members of the AWU.

2. The 2020 Agreement nominally expired on 16 August 2024.

3. On 10 May 2024, the AWU sent correspondence to the Respondent requesting that bargaining commence to replace the 2020 Agreement.

4. On 22 May 2024, the Respondent responded to the AWU and did not agree to bargain.

5. On 29 May 2024, the AWU sent further correspondence to the Respondent requesting that bargaining commence to replace the 2020 Agreement.

6. On 30 May 2024, the Respondent responded to the AWU and did not agree to bargain.

7. On 9 July 2024, the AWU sent further correspondence to the Respondent regarding bargaining to replace the 2020 Agreement. Attached to this correspondence was the AWU log of claims for the proposed agreement, which was in the form of a comprehensive enterprise agreement titled the Kuiper Australia Pty Ltd AWU, ETU and AMWU Offshore WA & NT Offshore Construction Projects Enterprise Agreement 2024 - 2027.

8. In the correspondence dated 9 July 2024, the AWU requested that the Respondent contact the AWU should it require any clarity regarding the AWU log of claims. The AWU reiterated this in an email to the Respondent later on the same day.

9. The Respondent did not seek any clarification on the AWU's claims.

10. On 9 August 2024, the Respondent sent correspondence to the AWU to inform the AWU of a meeting to discuss 'the process and timing' for negotiations for an agreement to replace the 2020 Agreement.

11. This meeting took place on 16 August 2024. I attended this meeting for the AWU, along with another AWU organiser, Tony Hall.

12. At this meeting, the Respondent confirmed that it had received the AWU log of claims. Bargaining meetings were set for 29 August 2024 and 11 September 2024. However, the Respondent did not initiate bargaining nor agree to bargain at this meeting.

13. On 17 August 2024, the AWU sent the Respondent a request to bargain consistent with s.173(2A) of the Fair Work Act, making 17 August 2024 the notification time for the proposed agreement.

14. The AWU and the company have not found agreement on some the key fundamental items, which include:

15. The next bargaining meeting has been scheduled for 29 August 2024.

16. The AWU is genuinely trying to reach agreement with the Respondent.

17. It is my belief that the AWU is not pursuing any claims regarding non-permitted matters or unlawful terms in negotiations with the Respondent.

18. The Fair Work Commission can be confident that the AWU meets the requirements contained in section 443(1)(b) of the Fair Work Act 2009 (Cth) and is genuinely trying to reach agreement with the Respondent."

• [13] The amended application form filed by the AWU on 21 August 2024 amended the response to question 1.2 as follows: "In accordance with s.437(5) of the Act, the employees to be balloted are those employees of Kuiper Australia Pty Ltd who are members of, or are represented by, The Australian Workers' Union and whose employment is covered by the Kuiper Australia Pty Ltd - Western Australia and Northern Territory Offshore Construction Projects Greenfields Agreement 2020 - 2024."

• [14] The initial draft order filed on 18 August 2024 in describing the group or groups of employees to be balloted said as follows:

"In accordance with s.437(5) of the Act, the employees to be balloted are those employees of Kuiper Australia Pty Ltd who will be covered by the proposed enterprise agreement and are members of, or are represented by, the bargaining representative who is the Applicant for this protected action ballot order."

• [15] The amended draft order filed on 21 August 2024 in describing the group or groups of employees to be balloted said as follows:

"In accordance with s.437(5) of the Act, the employees to be balloted are those employees of Kuiper Australia Pty Ltd who are members of, or are represented by, The Australian Workers' Union and whose employment is covered by the Kuiper Australia Pty Ltd - Western Australia and Northern Territory Offshore Construction Projects Greenfields Agreement 2020 - 2024."

• [16] Mr Kumeroa's evidence included that he is an Organiser employed by the AWU as an Offshore Alliance Organiser. Mr Kumeroa has extensive experience in enterprise agreement negotiations and has led enterprise agreement negotiations on behalf of AWU members with numerous employers in the hydrocarbons industry in Western Australia, including Chevron, Santos, Downer EDI Engineering, Fugro, Monadelphous and UGL.

• [17] Mr Kumeroa said the AWU has been actively seeking the commencement of bargaining for an enterprise agreement to replace the Kuiper Australia Pty Ltd - Western Australia and Northern Territory Offshore Construction Projects Greenfields Agreement 2020 - 2024 (2020 Agreement) since 10 May this year, and in the lead up to the nominal expiry date of the 2020 Agreement, he began holding discussions with AWU members covered by the 2020 Agreement to develop a log of claims and reach consensus on when the AWU should seek to begin negotiations with Kuiper for a replacement agreement.

• [18] Mr Kumeroa said that due to the scope of the work currently being performed by AWU members covered by the 2020 Agreement, which was coming to an end within two to three months of the 2020 Agreement's nominal expiry date, AWU members instructed the AWU to seek renegotiation of the 2020 Agreement as soon as possible so that the members could have meaningful input into the terms and conditions of employment in the sector going forward.

• [19] Mr Kumeroa submitted that the AWU seeks to urgently reach agreement with Kuiper for an Agreement to replace the 2020 Agreement for two reasons. Firstly, the AWU understands that Kuiper's workscope on the Scarborough Project, on which the vast majority of workers (and therefore AWU members) covered by the 2020 Agreement are engaged, is likely to come to an end in October 2024 or in November 2024 at the latest.

• [20] Mr Kumeroa said although Kuiper - and to a lesser extent other offshore construction employers - have some offshore construction projects lined up for the next two years, none will be as significant as the Scarborough project in terms of workforce size and duration. He said the AWU and its members want to bargain quickly and effectively with Kuiper to ensure that the workers currently engaged under the terms of the 2020 Agreement have direct input into the terms and conditions of employment in the sector going forward.

• [21] Secondly, the AWU is seeking to establish industry standard terms and conditions of employment in the offshore construction sector, and strategically the AWU wants to reach agreement with Kuiper for an agreement to replace the 2020 Agreement prior to 5 October 2024.

• [22] Mr Kumeroa's evidence was that he has been engaged in consistent discussions with members over the past few months to gauge their claims and attitude towards bargaining and has also had a number of informal discussions with Kuiper over the past 12 months. Mr Kumeroa said in these discussions, Kuiper has made it clear that oil and gas companies to which Kuiper contracts will oppose significant increases to rates of pay to offshore construction workers, and additionally, representatives of Kuiper have advised the AWU that these same companies would not agree to the rates sought by the AWU (those currently applicable in the Bass Strait) unless there was significant industrial disputation.

• [23] Mr Kumeroa said to the best of his knowledge, over the past decade, offshore construction workers have not had the opportunity to be directly involved in bargaining for their terms and conditions of employment - this is specifically so with Kuiper, which has traditionally struck greenfield agreements to cover this scope of work, including:

(a) Kuiper Australia - Western Australia and Northern Territory Offshore

(b) Kuiper Australia Pty Ltd Onshore and Offshore Greenfields Agreement 2015;

(c) Kuiper Australia Pty Ltd - Western Australia and Northern Territory

Construction Projects Greenfields Agreement 2016; and

• [24] Mr Kumeroa submitted that the primary goal of the AWU is to efficiently negotiate an enterprise agreement to replace the 2020 Agreement whilst AWU members are still engaged under that Agreement and the AWU is making this application for a protected action ballot order in pursuit of that goal.

• [25] Mr Kumeroa said initially, the AWU's claims included a claim for the scope of the proposed agreement to be expanded to cover maintenance workers, who he understood are covered by the Kuiper Australia Pty Ltd Maintenance Work (Western Australia and Northern Territory) Agreement 2021-2025 (Maintenance Agreement) which has a nominal expiry date of 2 July 2025. Maintenance workers are a minority cohort within the broader Kuiper workforce.

• [26] Mr Kumeroa said at the time the AWU was advancing the claims, he was not aware that this scope claim would cause a problem with the broader workforce - that is, those covered by the 2020 Agreement - accessing their right to take protected industrial action. He said he is now aware that Kuiper has raised an objection to the application on the basis that the scope proposed in the AWU log of claims captures other Kuiper employees covered by an in-term enterprise agreement.

• [27] Mr Kumeroa said he has discussed this with his colleagues, and his view, and the union's position, is that there is far more urgency for AWU members covered by the 2020 Agreement to commence and finalise negotiations. Although they wanted to bargain simultaneously in respect of the maintenance workers, this was a secondary priority. He said because of this, the AWU has decided to change its proposed agreement, and will now focus on renegotiating the terms and conditions of employment for members covered by the 2020 Agreement and will abandon the previous claim for the replacement agreement to have a broader scope.

• [28] Mr Kumeroa said accordingly the AWU rescinds its claim for the proposed agreement to have a broader scope than the 2020 Agreement. The AWU's proposed agreement now has a scope replicating the 2020 agreement. Mr Kumeroa said the only reason that the Union has made this change to its position is to keep the option of protected action alive in the important period of negotiations for those workers who are working under an expired agreement, and there is no other purpose. He said in particular, they do not intend to use protected industrial action to re-agitate the broader scope claim.

• [29] Mr Craig Follett, Managing Director of the Respondent gave evidence that the Respondent is engaged on the Scarborough ETL Coating and Installation Project (Project) which involves the construction and operation of offshore oil and gas facilities and the piping of hydrocarbons to onshore facilities for processing and exporting.

• [30] Mr Follett said Woodside Energy Ltd (Woodside) is the operator of the Project and has contracted Saipem to lay the pipes on the seabed to move hydrocarbons from offshore to onshore facilities. This work is undertaken through the use of the pipelaying vessel the 'Castorone'.

• [31] Mr Follett said the Respondent has been contracted by Saipem to provide supervision and offshore craft and trades labour services for construction onboard the Castorone for the Project, and the work is currently being conducted approximately 300km from the Western Australian coastline, within Australia's exclusive economic zone.

• [32] He said the Respondent's scope of work in connection with the Project was originally due to complete between April 2024 and May 2024, and is now due to complete between mid-October 2024 and mid-November 2024.

• [33] Mr Follett submitted that employees of the Respondent who perform offshore construction work are currently covered by the 2020 Agreement which has a nominal expiry date of 16 August 2024 which was made with:

(a) the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers (AMWU);

(b) the Electrical Trades Union, a division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU); and

(c) the Australian Workers' Union (AWU).

• [34] Mr Follett said the 2020 Agreement covers offshore construction work only, and does not cover hook-up, commissioning, or decommissioning work. He said employees of the Respondent who undertake maintenance work, hook-up and commissioning and decommissioning work are covered by the Maintenance Agreement, which has a nominal expiry date of 2 July 2025. He said the AWU, AMWU and ETU were bargaining representatives for the Maintenance Agreement and are covered by it.

• [35] Mr Follett's evidence was that on 10 May 2024, he received a letter from Mr Zachary Duncalfe of the AWU, on behalf of the Offshore Alliance requesting that bargaining for a replacement to the 2020 Agreement commence. He said the scope of the proposed replacement agreement was not identified.

• [36] Mr Follett said on 22 May 2024, he responded by email declining the request on the basis that the Respondent was not in a position to commence bargaining. He said the reason for this response was that the Respondent wished to be able to consult with its stakeholders, being its clients (which includes Saipem and others) and employees prior to commencing bargaining.

• [37] Mr Follett stated the Respondent is keen to secure a replacement agreement before the end of the current projects so that the employees currently employed on current projects can benefit from any improved terms and conditions under a replacement enterprise agreement. He said to this end, over July 2024, he attended 4 of the 5 vessels that the Respondent is currently providing construction crews to, in order to speak directly with crew about their current and future priorities with respect to their terms and conditions of employment.

• [38] Mr Follett said that the Respondent also needs to ensure that it understands the parameters of its clients before commencing negotiations for a replacement agreement, and he has experienced a situation where the terms sought by the unions for a new enterprise agreement were not acceptable to a client and as a result, a project was cancelled due to project no longer being financially viable based on the terms sought. As a consequence, crew who were to mobilise to the project, were not mobilised.

• [39] Mr Follett said on 29 May 2024, he received another letter from Mr Duncalfe, on behalf of the Offshore Alliance, in relation to negotiations for a replacement agreement. He said once again, the scope of the proposed replacement agreement was not identified.

• [40] Mr Follett submitted that on 30 May 2024, he responded to the AWU's letter dated 29 May 2024 by email, reiterating the Respondent's position and its desire to engage relevant stakeholders prior to being in a position to bargain.

• [41] Mr Follett said on 9 July 2024, he received a letter from Mr Duncalfe, on behalf of the Offshore Alliance, and the letter attached what was described as the AWU's Log of Claims, being a draft proposed agreement (AWU Proposed Agreement).

• [42] Mr Follett said the coverage of the AWU Proposed Agreement is different to the 2020 Agreement in several material respects. Mr Follett said on 9 July 2024, he responded to the AWU and on the same date received an email from Mr Duncalfe.

• [43] Mr Follett submitted that as he read the AWU Proposed Agreement, it sought rates and conditions the same as those provided to offshore construction crew working in Victoria, which would result in an average increase in wage arrangements for Kuiper employees of approximately 75% and he would need to understand the justification for these increases in order to be able to give them proper consideration (particularly in circumstances where the AWU Proposed Agreement would also seemingly require all of the employees in Western Australia, who are presently engaged as casuals, to transfer to full time employment - a proposition that on its face presents some difficulties given the work is irregular and the projects are short term in duration, with an average project length being no more than 120 days).

• [44] Mr Follett said he had expected that these matters, and other matters, would be discussed and explained by the AWU in the course of bargaining for a replacement agreement, and for obvious reasons, those matters would also need to be considered and responded to with an understanding of any claims made by other union bargaining representatives. Mr Follett said at the date the AWU's Proposed Agreement was provided, the Respondent had not been provided with logs of claim by the ETU or AMWU, and to date the Respondent does not have a log of claims from the ETU or AMWU.

• [45] Mr Follett gave evidence that on 9 August 2024, he sent an email to each of the unions who he understood would be bargaining representatives for any agreement to replace the 2020 Agreement (being those presently covered by that agreement), inviting them to a preparatory meeting to discuss the process and timing for upcoming negotiations.

• [46] Mr Follett said on 16 August 2024, he attended a meeting with representatives of each of the AWU, AMWU and ETU, to discuss the process and timing for the upcoming negotiations for an agreement to replace the 2020 Agreement. He said the meeting was also attended by Mr Paul Smith of the Respondent, Mr Glen McLaren of the AMWU, Mr Ross Kumeroa of the AWU, Mr Tony Hall of the AWU and Mr Adam Woodage of the ETU. He said at that meeting it was agreed that the first bargaining meeting for an agreement to replace the 2020 Agreement would be held on 29 August 2024, and that at that meeting, the union bargaining representatives would provide to Kuiper their individual Log of Claims for the proposed agreement and explain to Kuiper the basis for each claim in their Log of Claims, so that Kuiper could then consider its position and subsequently provide a response. It was also agreed that a second bargaining meeting would be scheduled for 11 September 2024.

• [47] Mr Follet's evidence was that at this meeting on 16 August 2024, there was no discussion at all of any claims, including any matters set out in the AWU Proposed Agreement. He said he stated that the Respondent wanted to see all union bargaining representative claims so that it could consider the claims collectively. Mr Follett said at this meeting, he had stated that it was Kuiper's preference to have in place a replacement agreement before the completion of its current projects so that current employees could benefit from any improved conditions under a replacement enterprise agreement. Mr Follett provided with his evidence a copy of the minutes of the meeting on 16 August 2024.

• [48] Mr Follett submitted that on 17 August 2024, the day after he had met with the representatives from each union and agreed on dates for the next two bargaining meetings, he received a letter from Mr Duncalfe, on behalf of the Offshore Alliance, making a formal request to commence bargaining for the purpose of s 173(2A) of the Fair Work Act 2009 (Cth). The letter included the following:

Re: Bargaining to replace the Kuiper Australia Pty Ltd - Western Australia and Northern Territory Offshore Construction Projects Greenfields Agreement 2020-2024

We contact you on behalf of The Australian Workers' Union (AWU) and the Maritime Division of the Construction, Forestry, Maritime, Mining and Energy Union (MUA), collectively known as the Offshore Alliance (Alliance).

As you are likely aware, the enterprise agreement known as the Kuiper Australia Pty Ltd Western Australia and Northern Territory Offshore Construction Projects Greenfields Agreement 2020-2024 (2020 Agreement) nominally expired on 16 August 2024. A significant number of employees covered by the 2020 Agreement are members of The Australian Workers' Union.

The AWU formally requests that bargaining for an enterprise agreement to replace the 2020 Agreement commences as soon as practicable. As an employee organisation, the AWU will be the default bargaining representative for its members in negotiations for an agreement to replace the 2020 Agreement by virtue of s.176(1)(b)(i) of the Fair Work Act 2009 (Act).

Please note that this correspondence is a request in writing to bargain for a proposed agreement for the purposes of s.173(2A) of the Act. As such, 17 August 2024 is the notification time for the proposed agreement to replace the 2020 Agreement. Please acknowledge receipt of this correspondence as soon as practicable.

• [49] Mr Follett said that on 19 August 2024, Mr Duncalfe, on behalf of the Offshore Alliance sent a letter addressed to him, care of Kuiper's solicitors (at Hall & Wilcox), asserting that the scope of the proposed agreement would be a matter for bargaining. The letter included the following:

Re: Bargaining to replace the Kuiper Australia Pty Ltd - Western Australia and Northern Territory Offshore Construction Projects Greenfields Agreement 2020- 2024

We contact you on behalf of The Australian Workers' Union (AWU) and the Maritime Division of the Construction, Forestry, Maritime, Mining and Energy Union (MUA), collectively known as the Offshore Alliance (Alliance).

We contact you in relation to the now expired Kuiper Australia Pty Ltd - Western Australia and Northern Territory Offshore Construction Projects Greenfields Agreement 2020-2024 (2020 Agreement) and the AWU's request to bargain for a replacement agreement dated 17 August 2024.

The AWU clarifies that the union seeks to bargain for an agreement to replace the 2020 Agreement and, as evidenced by the AWU log of claims served on the company on 9 July 2024, the AWU considers scope likely to be the subject of negotiation throughout bargaining.

In any protected action ballot order that the AWU may apply for in relation to the renegotiation of the 2020 Agreement, the AWU will only ever seek to ballot members of the AWU who are covered by the 2020 Agreement. We ask that you acknowledge receipt of this correspondence as soon as practicable."

• [50] Mr Follett said that as at the time he made his statement:

(a) no bargaining meetings (other than the preparatory meeting of 16 August 2024) had been held with the AWU, AMWU or ETU;

(b) there had been no discussions about any terms of the proposed enterprise agreement, nor any discussion of any single claim to be made by any of the four relevant bargaining representatives;

(c) Kuiper had not received a log of claims from the AMWU or ETU (which Kuiper understood it would receive in advance of the first bargaining meeting scheduled for 29 August 2024) and had no idea to what extent those logs of claims will differ from that of the AWU.

(d) whilst the AWU had provided a draft of the AWU Proposed Agreement, the coverage of the AWU Proposed Agreement is, for reasons materially different from that of the 2020 Agreement. The Respondent had not yet indicated to the AWU its position in relation to any terms of the AWU Proposed Agreement and no aspects of that Log of Claims have been discussed at all;

(e) The Respondent had not otherwise received any log of claims from the AWU for any other form of proposed agreement to replace the Offshore Construction Agreement;

(f) The Respondent is yet to put to any of the bargaining representatives its own log of claims in relation to an agreement to replace the Offshore Construction Agreement; and

(g) Kuiper has not yet issued a Notice of Employee Representational Rights to its employees.

• [51] Mr Follett said Clause 4.1.2 of the 2020 Agreement provides that it applies to employees engaged in the Offshore Construction Industry. Clause 4.2 sets out a definition of 'Offshore Construction'. Clause 4.3 of the 2020 Agreement expressly provides that the agreement is not to be used for (that is, does not cover):

(a) hook-up or commissioning;

(b) repair, replacement or remedial work on existing facilities or infrastructures; or

(c) production work.

• [52] Mr Follett said all of these types of work, expressly excluded from the coverage of the 2020 Agreement, are covered instead by the Maintenance Agreement (at clause 1.3), and the employees covered by the 2020 Agreement do not perform any of these kinds of work, including hook-up, commissioning or decommissioning work.

• [53] Mr Follett said by contrast, clause 4.1 of the AWU Proposed Agreement states that it will cover all offshore construction, decommissioning and hook-up commissioning work performed by employees in the classifications set out in clause 32 of the AWU Proposed Agreement, and AWU Proposed Agreement seeks to cover hook-up and commissioning work.

• [54] Mr Follett accepted during cross examination that it was his view the existing scope of the separate agreements was appropriate. He agreed the purpose of the meeting on 16 August 2024 was to set up a bargaining process to replace the existing agreement, the meeting was for the purpose of laying the ground work for negotiating activity to come, and the business' desire is to negotiate a replacement for the 2020 Agreement, with the goal to have it completed by October 2024.

• [55] Mr Follett agreed it was the intent of the Respondent to issue a NERR this week. Mr Follett agreed that it was his understanding that when the NERR is drafted and issued the employees proposed to be covered will be the employees currently covered by the 2020 Agreement.

• [56] In re-examination Mr Follett gave evidence that the Respondent had not yet developed a log of claims. He said that was because generally the Respondent prepares its log of claims after it has received the logs of claims from each of the AWU, AMWU and ETU. Therefore, the Respondent understands what each union is seeking and can make an assessment of what changes or additions are requested to put into the agreement. He concluded that from a business perspective the Respondent may need to look at if it may or may not be able to facilitate some of the requests. He said no consideration had been given to those matters yet.

• [57] The Respondent submitted that on 17 August 2024, the AWU wrote to the Respondent making a formal request to commence bargaining for an enterprise agreement to replace the 2020 Agreement for the purposes of section 173(2A) of the Act.

• [58] The Respondent submitted that on the very next day, 18 August 2024, the AWU lodged an application with the Commission seeking the making of a protected action ballot order (PABO). The PABO seeks to ballot employees of the Respondent who are members of the AWU and who will be covered by what is identified by the AWU as "the proposed enterprise agreement". It is noted that on the morning of the hearing the AWU filed an amended application seeking to amend the description of those to be balloted to be confined to those covered by the 2020 Agreement.

• [59] The Respondent submitted that the only proposed enterprise agreement in existence and being pursued by the AWU as at the time of the filing of the application, was a draft agreement described by the AWU as its log of claims for bargaining, the AWU Proposed Agreement.

• [60] The Respondent submitted that its principal position is that the Commission cannot make the PABO for two reasons:

(a) first, because an application should not have been made under section 437 (for the purposes of section 443(1)(a)), because it is more than 30 days before the nominal expiry date of an enterprise agreement that presently covers a number of employees who would be covered by the proposed enterprise agreement, such that the Application must not have been made (section 438(1) of the Act); and/or

(b) second, because the Commission cannot be satisfied the AWU has been, and is, genuinely trying to reach agreement with the employer of the employees who are to be balloted, in relation to the proposed enterprise agreement, for the purposes of section 443(1)(b) of the Act.

• [61] The AWU submitted that in advance of the 2020 Agreement reaching its nominal expiry date on 16 August 2024, the AWU had on several occasions attempted to have the Respondent begin negotiations for a replacement agreement, including by providing a draft on 9 July 2024. The AWU accepted that one of the claims is to increase the scope of the Agreement to cover maintenance workers, who are presently covered by an enterprise agreement which has not yet reached its nominal expiry date.

• [62] The AWU submitted that the parties met at the Respondents initiative on 9 August 2024 to discuss the prospect of future negotiations (but without the Respondent formally agreeing to bargain).

• [63] The AWU submitted that section 438 provides that, in circumstances where more than one enterprise agreement covers the employees who will be covered by a proposed enterprise agreement, an application for a PABO must not be made earlier than 30 days before the latest nominal expiry date of those agreements. The concept of a 'proposed enterprise agreement' is inherently mutable: necessarily, it is subject to change via negotiation. The AWU referred to the decisions in Wesfarmers Premier Coal v AMWU (No 2) [2004] FCA 1737; (2004) 138 IR 362 to support the position that the term 'proposed enterprise agreement' is 'a generic term [that] allows for a variety of possibilities' and Mermaid Marine Vessel Operations Pty Ltd [2014] FWCFB 1317 (Mermaid Marine) to support that neither its content nor scope need be settled.

• [64] The AWU submitted that it is not necessarily the case that the 'proposed enterprise agreement' is that of the one being proposed by the AWU, and referred to the decision in MSS Security Pty Ltd v LHMU [2010] FWAFB 6519 (MSS Security) at [8] where the Full Bench said as follows:

"[8] The Fair Work Act 2009 (FW Act) uses the expression "proposed enterprise agreement", "proposed single-enterprise agreement" and "proposed agreement" in a number of places. An agreement may be "proposed" by an employer or it may be "proposed" by a bargaining representative of employees or there may be different and competing agreements "proposed" by both. Where a person makes an application under the FW Act in their capacity as a bargaining representative for a "proposed enterprise agreement" or "proposed single enterprise agreement", the bargaining representative is entitled to rely on the agreement it has proposed or it may choose to make the application in relation to an agreement proposed by another bargaining representative. In this case, it was the LHMU that first "proposed" an agreement and it was the agreement proposed by the LHMU that was the "proposed single enterprise agreement" for purposes of the LHMU's application for a protected action ballot order under s.437."

• [65] AWU submitted that the MSS Security decision predates the Mermaid Marine decision to support the proposition that it is the AWU's proposed agreement that matters. The AWU refuted this by reference to a decision a Full Bench decision in The Maritime Union of Australia v Maersk Crewing Australia Pty Ltd [2016] FWCFB 1894 (Maersk) where this issue is dealt with at [16]. In their submission Maersk makes it clear that the MSS Security was not a correct reading of the Act. Paragraphs [15], [16] and [17] of that decision read as follows:

"[15] Mermaid Marine and Skilled Offshore stand for the proposition that all that is required for there to be 'a proposed enterprise agreement' within the meaning of ss. 437(1) and 443(1) of the FW Act is an 'agreement [which] the bargaining representative applying for an order under [s.437] is proposing at the time the application for a protected action ballot order is made'. Further, in MUA v Swire Pacific Ship Management (Australia) Pty Ltd (Swire) the Full Bench characterised a 'proposed enterprise agreement' as something that one of the parties wants to negotiate: 'There need not be a developed draft, and it may simply be an idea or a series of claims...' While Mermaid Marine, Skilled Offshore, and Swire were all decided before the commencement of s.437(2A), we are not persuaded that the introduction of s.437(2A) affects the reasoning in those cases in respect of this issue.

[16] We should also add that the decision in Mermaid Marine should not be taken as suggesting that an application under s. 437(1) of the FW Act may only be made in relation to an agreement proposed by a PABO applicant. Mermaid Marine was concerned with resolving a contention that because the scope of the agreement proposed by the employer covered employees who were also covered by an operative enterprise agreement whose nominal expiry date had not yet passed and was not due to pass for some significant period, the PABO applicant was prevented, by reason of s.438 (1), from making the application. However the PABO applicant in Mermaid Marine was proposing an agreement which was narrower in scope than the agreement proposed by the employer covering only those employees who were not otherwise covered by the operative enterprise agreement. It is in that context that paragraph [46] in Mermaid Marine is to be understood.

[17] Therefore, it seems to us plainly permissible that a bargaining representative of an employee who will be covered by an agreement proposed by the employer, may apply for a protected action ballot order to determine whether employees wish to engage in particular protected industrial action for that agreement."

• [66] The AWU submitted that it is not true that there is only one proposed agreement in play here. The AWU contended that on 9 August 2024 Mr Follett wrote to representatives of the AMWU, ETU and AWU to discuss the 'process and timing for negotiations' for an agreement to replace the 2020 Agreement. The AWU submitted that at that meeting, the Respondent proposed a schedule of meetings, sought the provision of logs of claims by the unions and indicated its desire to conclude bargaining by mid to late October 2024. The AWU submitted that notwithstanding the Respondent's position that 'bargaining had not commenced' (more accurately, that a notification time had not occurred in that it had obviously agreed to bargain), it is plain that a proposed enterprise agreement had at this stage emerged from the Respondent: a 'replacement agreement'. Its precise terms are unsettled, unsurprisingly, but its scope is clear: the employees whose agreement had that day expired.

• [67] The AWU submitted that scope was, at that time, likely to be the subject of negotiation. The AWU had indicated, as set out above, that it also sought to have the replacement agreement cover maintenance workers, however that is beside the point. The AWU submitted that this application only seeks to ballot workers covered by the 2020 Agreement, and it can competently be brought in respect of the Respondent's proposed enterprise agreement. On that basis the Respondent's objection fails.

• [68] The AWU submitted in the alternative, the point is otherwise moot. The AWU is no longer pursuing its claim for a broader scope clause, as set out in the statement of Mr Kumeroa. The proposed agreement has accordingly changed. To the extent necessary, the AWU amends its application accordingly. This is the same course that was accepted by the Full Bench in Application by MUA [2014] FWCFB 2587 in materially identical circumstances.

• [69] The Respondent submitted that Section 443(1)(a) of the Act requires that an application has been made under s 437 of the Act, and this requires the existence of a "valid application". The Respondent referred to the decision in Re Inghams Enterprises Pty Ltd [2011] FWAFB 33 at [34] where the Full Bench in that there was no valid application and making an order in those circumstances exceeded jurisdiction.

• [70] The Respondent also referred to a Full Bench decision in CFMEU v AGL Loy Yang Pty Ltd [2016] FWCFB 2878; (2016) 257 IR 68 9 (AGL Loy Yang) at [3] and [43]) which relevantly included an application that is not able to be made. The Full Bench said as follows at [3]:

"AGL Loy Yang opposes the grant of a PABO on several grounds including that the CFMEU could not, on 5 April 2016, apply for a PABO because there has not been a notification time in relation to the proposed enterprise agreement. We agree and we have decided to dismiss the application. As we have concluded that there is not a valid application for a PABO before the Commission, it is not necessary for us to decide the other matters argued before us and we decline to do so. These are our reasons for dismissing the application."

• [71] The Full Bench at [43] said as follows:

"That the CFMEU was proposing an agreement with more than one employer at the time that it applied for a PABO in circumstances where one of the employers had not agreed to or initiated bargaining, seems to us therefore to be fatal to the application. The CFMEU was not, on 5 April 2016, able to apply under s 437(1). That the CFMEU later changed its position in relation to the application or coverage of the proposed agreement does not change the fact that when it applied, it was not permitted by reason of s 437(2A) of the Act to do so. The purported application it made was not a valid one."

• [72] The Respondent submitted that Section 438(1) of the Act provides for a circumstance where such an application may not be made, and proper construction of section 438(1) was considered in Mermaid Marine. The integers of section 438(1) were set out in Mermaid Marine at [27]. For the purposes of the first of those integers, the "proposed enterprise agreement" is that which the PABO applicant is proposing at the time the application for the PABO is made. The Respondent referred to paragraph [46] of that decision which said as follows:

"When read in context, "a proposed enterprise agreement" in s 438(1) seems to us to mean no more than the agreement the bargaining representative applying for an order under s 447 is proposing at the time the application for a protected action ballot order is made. It is that agreement to which the ballot will relate and it is employees represented by the bargaining representative who fall within the scope of that agreement (or a group of such employees) who will vote on questions of particular industrial action. That the Appellant does not agree with the scope of the proposed agreement or would prefer a broader scope or that the bargaining parties have bargained for a broader scope previously is, for the purpose of identifying the proposed enterprise agreement to which s 438(1) might relate, irrelevant in considering whether s 438(1) prohibits an application being made."

• [73] The Respondent submitted the only "proposed enterprise agreement" in existence on 18 August 2024 (when the Application was made), as being proposed by the AWU, was the AWU Proposed Agreement. On its terms, it covered decommissioning and hook-up commissioning work performed off the coast of Western Australia and the Northern Territory by employees of the Respondent. Such work is also covered by the Maintenance Agreement whose nominal expiry date is 2 July 2025, and these facts are fatal to the validity of the application, and the capacity of the Commission to make a PABO, and the application must be dismissed on that basis alone.

• [74] In response to the AWU submission in relation to the decision in Maersk, the Respondent submitted that while it is correct to say there is no reason why at the time the application is made, the bargaining representative applying for the order could not seek, for the purposes of that application, to reply upon an employers proposed enterprise agreement, that cannot be done 'by side wind after the event,' and that is a question of fact.

• [75] The nature of the proposed enterprise agreement that the AWU is seeking at the time of the application is a question of fact. The Respondent submitted that even if there was a proposed enterprise agreement in existence from the Respondent, and therefore the AWU had a choice as of 18 August 2024 as to which proposed enterprise agreement the AWU relied upon, it is a question of fact as to which one the AWU did rely upon.

• [76] The Respondent submitted in closing oral submissions that the evidence of Mr Kumeroa put beyond doubt, if the original application and draft order did not, that the nature of the proposed agreement that was being sought at the time of the application being filed on 18 August 2024 was the AWU Proposed Agreement.

• [77] The Respondent submitted that paragraph [46] of Mermaid Marine makes plain that is the end of the issue. The Respondent submitted that the decision in AGL Loy Yang dealt with circumstances where the CFMEU was trying to reach an enterprise agreement with two entities, AGL Loy Yang, and AGL Energy Limited. The Full Bench noted there was no notification time at the filing of the PABO application for an agreement covering both entities.

• [78] The Respondent submitted there were originally negotiations with one company only: AGL Loy Lang, and a NERR issued with respect to them, bargaining proceeded, and the CFMEU then sought to change its position to cover the two entities and that was the position at the time of filing the application on 5 April. On 12 April the CFMEU wrote to advise it proposed an agreement with AGL Loy Lang. The CFMEU submitted at the hearing that it was appropriate to consider the agreement proposed could include up to and the hearing itself.

• [79] The Full Bench said as follows at paragraph [31]

"It seems to us, for present purposes the question of the validity of the application for a PABO made by the CFMEU, may be determined by considering whether, on 5 April 2016, s 437 permitted the CFMEU to apply to the Commission for an order. The answer to this question depends in turn on first identifying the proposed enterprise agreement in relation to which a protected action ballot would be conducted to determine whether employees wish to engage in particular industrial action for the agreement. Secondly, the answer depends on whether there has been a notification time in relation to the proposed enterprise agreement."

• [80] At paragraph [33] the Full Bench went on to say:

"In this case, identifying the proposed enterprise agreement is not difficult. As at 5 April 2016, the proposed agreement was that which was attached to the witness statement of Mr Hardy as Annexure GH88. The proposed agreement contains an application or coverage provision which seeks that the proposed agreement cover employers (and their employees) other than AGL Loy Yang. That this was the case when the CFMEU applied under s 437 of the Act is uncontroversial. That the CFMEU subsequently, on 12 April 2016, changed its position on the application or coverage of the proposed enterprise agreement it sought so as to limit it to employees of AGL Loy Yang, does not change the fact that when it applied for a PABO on 5 April 2016, it sought and proposed an agreement not only with AGL Loy Yang but also with AGL Energy and unidentified related bodies corporate of AGL Energy."

• [81] Finally at paragraph [39] the Full Bench said as follows:

"We do not accept the construction of s 437 advanced by the CFMEU. The question of whether a bargaining representative "may apply" is, in our view, to be determined at the time that such an application is made rather than having regard to the possibility that circumstances, which existed at the time the application was made which would prevent the application, might change during the hearing or indeed prior to a decision as to whether a PABO is made. The construction for which the CFMEU contends is contrary to the clear words of s 437(1) read in the context of the section as a whole and the other provisions of Div 8 of Pt 3-3, Ch 3 of the Act and would render for example the operation of s 441(1), which requires the Commission to determine a PABO application within two working days after the application is made, uncertain."

• [82] The Respondent submitted that the facts are the same here, and that the fact that the CFMEU attempted to change its position after the application was filed.

• [83] The AWU submitted in closing oral submissions that a 'proposed agreement; is fundamentally a question of fact, but it is a nebulous one and the authorities are clear it does not need to be a crystallised log of claims.' The AWU submitted that on the Respondent's evidence it had confirmed that it had agreed to bargain, initiated a negotiating process through the administrative meeting and is about to issue a NERR whose scope will be limited to the 2020 Agreement, meaning it has formed a view on scope and it expressly wants to replace the 2020 Agreement.

• [84] The AWU submitted while the Respondent doesn't know what the agreement will say precisely and hasn't yet formed a view about what its response to the unions claims will be, that does not mean their proposed agreement is completely without form. The AWU submitted the Respondent is proposing to make an enterprise agreement with the particular cohort of employees to set their terms and conditions, and that is enough and the AWU relies on that proposed agreement. The AWU submitted that the Respondent's agreement was first proposed by Mr Follet writing to the Unions on 9 August 2024, which is the letter where Mr Follett said the purpose of the meeting was to discuss the process and timing for negotiations with the ETU, AWU and the AMWU.

• [85] The AWU said the Respondent's proposal crystallised at the meeting on Friday 16 August 2024.

• [86] The AWU contended that in the alternative, in relation to the section 438 argument that the AWU had changed its position, that this was a rational decision in the circumstances. The AWU seeks to amend its application. It was submitted that the final two paragraphs in the letter from the AWU to Mr Follett on 19 August 2024 (after the application had been made) supported this position.

• [87] I have weighed the evidence and it is apparent that the circumstances in this matter bear some similarities to those in the AGL Loy Lang decision. The evidence of Mr Kumeroa taken together with that of Mr Follett, and in context of the form of: the initiating application and draft order; the correspondence from the AWU to the Respondent the day after the day of filing; and the subsequent application to amend the application and proposed amended draft order, all point to the conclusion that as a matter of fact at the time of filing the application, the agreement the AWU proposed included coverage of employees who were covered by an enterprise agreement with a nominal expiry date in 2025.

• [88] The AWU has sought to remedy this issue immediately following the filing of the application, but in accordance with the authorities, the relevant time had passed. The application has not been in accordance with section 437 of the Act (for the purposes of section 443(1)(a)), because it is more than 30 days before the nominal expiry date of an enterprise agreement that presently covers a number of employees who would be covered by the proposed enterprise agreement.

• [89] Given my conclusion above it is unnecessary to deal with the second limb of the Respondent's objection that the Commission cannot be satisfied the AWU has been, and is, genuinely trying to reach agreement with the employer of the employees who are to be balloted, in relation to the proposed enterprise agreement, for the purposes of section 443(1)(b) of the Act.

• [90] The application for a PABO made by the AWU on 18 August 2024 is dismissed. An order giving effect to this decision will be issued separately and concurrently with this decision.

M Follett and J MacLean, Counsel for the Respondent

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